Gordon v. Board of Sup'rs of Fairfax County

• Decision Date: 06 March 1967
• Citation: 207 Va. 827,153 S.E.2d 270
• Court: Virginia Supreme Court
• Parties: Paul W. GORDON et al. v. BOARD OF SUPERVISORS OF FAIRFAX COUNTY et al.

Page 270

153 S.E.2d 270

207 Va. 827

Paul W. GORDON et al. v.BOARD OF SUPERVISORS OF FAIRFAX COUNTY et al.

Supreme Court of Appeals of Virginia.

March 6, 1967.

Randolph W. Church, Jr., Fairfax (Hardee Chambliss, Centreville, on brief), for appellants.

Robert C. Fitzgerald, Fairfax (H. Kendrick Sanders, Jr., Fairfax, Ralph G. Louk, Commonwealth's Atty., Fitzgerald & Smith, Fairfax, on brief), for appellees.

Before Eggleston, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON and GORDON, JJ.

I'ANSON, Justice.

This is an appeal from a decree entered in a declaratory judgment proceeding sustaining a demurrer and dismissing an amended bill of complaint filed by the plaintiffs, Paul W. Gordon and Harriet R. Gordon, 'as taxpayers for themselves and all others similarly situated' and 'as landowners adversely affected,' against the Board of Supervisors of Fairfax County(Board), the Fairfax County Airport Authority(Authority), the individual members thereof, and others.Plaintiffs prayed, among other things, that the court declare that under the provisions of the Fairfax County Airport Authority Act, Chapter 642, pp. 967-975, Acts of 1964, the Board had no statutory power to lend $20,000 to the Authority for the preliminary costs incident to the construction of an airport; that even if the Board had the power to lend the money, it had not adopted a proper resolution authorizing the disbursement of the funds from the county treasury; that the Board had abused its discretion; and that the Authority had no power to accept the loan.

The pertinent provisions of the Airport Authority Act are as follows:

Section 2 states that the revenue bonds issued by the Authority shall be payable solely from tolls and revenues.All expenses incurred in carrying out the provisions of the Act'shall be payable solely from funds provided under the provisions of the Act.'

Section 3 provides that if the Fairfax County Board declares that there is a need for an airport in the county, it may create an airport authority.The exercise by the Authority of the powers conferred by the Act is deemed to be the performance of an essential governmental function.The remainder of the section prescribes the organization of the Authority.

Under the relevant subsections of Section 4 the Authority is given the following powers: (d) to issue revenue bonds payable solely from tolls and revenues; (e) to fix and collect tolls and fees for the use of the airport; (f) to acquire and accept real and personal property, including gifts and contributions from political subdivisions; (h) to enter upon any land for the purpose of making surveys, soundings, borings and examinations; (j) to enter into grant agreements with the federal government for airport planning, development and operation under the Federal Airport Act;(k) to do all things necessary or convenient to carry out the powers expressly granted; and (l) to borrow money and to issue evidence of indebtedness of the Authority.

Section 5, dealing with the acquisition of property, empowers Fairfax county to lease, lend, grant or convey real property to the Authority and gives the Authority the power of eminent domain.

Section 13 states: 'This Act, being necessary for the welfare of the Commonwealth and its inhabitants, shall be liberally construed to effect the purposes thereof.'

Pursuant to the provisions of section 3 of the Act, the county Board, on July 3, 1964, declared that there was a need for an airport in the county, created the Authority, and appointed the members.

Subsequently the Authority announced its intention to construct and operate an airport on property owned by plaintiffs and other landowners.

At its meeting on May 19, 1965, the Board adopted a motion to lend $20,000 to the Authority, the amount requested by it to compensate engineers engaged to prepare construction drawings and specifications in order to apply for a grant under the Federal Airport Act.It was stipulated that the loan would be repaid from the sale of bonds to be issued by the Authority.

Plaintiffs contend that the trial court erred in sustaining the demurrer and holding (1) that the Board had power to make the loan; (2) that a proper resolution was adopted; (3) that the Board did not abuse its discretion; and (4) that the Authority could accept the loan.

Defendants say (1) that plaintiffs lack standing to prosecute this appeal; (2) that the question of the Board's power to lend money to the Authority was rendered moot by the enactment of Chapter 132, p. 231, Acts of Assembly, 1966; and (3) that under the principle of res judicata plaintiffs cannot question the legality of the loan.

We shall first consider defendants' contention that plaintiffs lack standing to prosecute this appeal 'as taxpayers for themselves and all others similarly situated.'

Defendants rely upon Nicholas v. Lawrence, 161 Va. 589, 171 S.E. 673(1933).There the trial court sustained a demurrer to a petition filed by taxpayers who sought the removal of the tie-breaker of the Norfolk County Board of Supervisors.After observing that the Code provided a procedure for the removal of officials, we said that the interest appellants had as residents and taxpayers was insufficient to make them proper parties to the proceeding they had initiated.Thus, since the taxpayers were not proper parties to the proceeding below, we concluded that they could not be aggrieved by the judgment rendered therein within the meaning of § 6336, Code of 1919(now § 8-462(3)(c) Code of 1950, 1957 Repl.Vol.), and dismissed the writ.

The opinion in Nicholas does not refer to our earlier decision in Roper v. McWhorter, 77 Va. (2 Hans.) 214 (1883), where we said that taxpayers have the right to resort to equity to restrain local government officials from exceeding their powers in any way which will injuriously affect the taxpayers, such as making an unauthorized appropriation of corporate funds.

Subsequent to Nicholas we have held that taxpayers could seek equitable relief to prevent issuance of bonds which they alleged would result in an illegal tax burden.Appalachian Electric Power Co. v. Town of Galax, 173 Va. 329, 333, 4 S.E.2d 390, 392(1939);Vaughan v. Town of Galax, 173 Va. 335, 341, 4 S.E.2d 386, 389(1939).Compare, Sauer v. Monroe, 171 Va. 421, 199 S.E. 487(1938), where we said a taxpayer may not sue on behalf of a municipality to recover money which he contends has been illegally disbursed without first requesting the proper authorities to sue, or without showing that such a request would have been unavailing.

Moreover, it appears that taxpayers' suits to test the legality of expenditures by local governments are permitted in virtually every state.Note, Taxpayers' Suits: A Survey and Summary, 69 YaleL.J. 895, 896 n. 7, 902(1960); Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv.L.Rev. 1265, 1278(1961).

We hold that plaintiffs have standing to prosecute this appeal.

Defendants say that the question of the Board's power to lend money to the Authority is now moot as a result of the enactment of Chapter 132, p. 231, Acts of Assembly, 1966, which added the following section to the Code:

'The governing body of a county in this State may give, lend or advance in any manner that to it may seem proper funds or other county property, not otherwise specifically allocated or obligated, to any authority created by such governing body pursuant to law.'Code§ 15.1-511.1 (1964 Repl.Vol., 1966 Supp.).

We do not agree with defendants' contention.There is nothing in the statute adopted in 1966 to indicate that it was intended to be a 'curative statute' designed to validate the acts of the Board if it did not possess pre-existing power.2 Sutherland, Statutory Construction, § 2214(3d ed. Horack 1943);50 Am.Jur., Statutes, § 481, p. 503.

It should be noted, however, that the passage of a statute expressly conferring power on a political subdivision does not necessarily preclude the pre-existence of the power.Hopkins v. City of Richmond, 117 Va. 692, 703, 86 S.E. 139, 142(1915), overruled on other groundsIrvine v. City of Clifton Forge, 124 Va. 781, 97 S.E. 310(1918).

Defendants next say that under the doctrine of res judicata the plaintiffs are barred from questioning the authority of the Board in this case by the final decree in an injunction proceeding instituted by the Authority against the Gordons, plaintiffs in the present suit, and other landowners.

It is essential to the application of the doctrine of res judicata that the identical issue sought to be relitigated has been settled by a valid final judgment in a proceeding to which the identical persons or their privies were parties in the identical capacities in which they appear in the later litigation.Patterson v. Anderson, 194 Va. 557, 564, 74 S.E.2d 195, 200(1953).

In the injunction suit brought by the Authority the trial judge enjoined the Gordons and other landowners from obstructing representatives of the Authority from entering upon their lands for the purpose of making surveys, soundings, borings and examinations.The landowners did not contest the power of the Authority to enter upon their lands for the purposes authorized by section 4(h) of the Airport Act.Their objection was that the Authority was not financially able to compensate them for any damage which might be done.Not only was the issue of the Authority's financial ability not decided by the court, but the landowners could not defend on the ground that the Authority might have no money to pay for the land taken or that it would incur an indebtedness beyond its ability to pay.Light v. City of Danville, 168 Va. 181, 197, 190 S.E. 276, 282(1937).Hence the doctrine of res judicata is not applicable here.

We now turn to plaintiffs' first contention, that the Board did not have the power to lend $20,000 to the Authority to be used for the preparation of site drawings and specifications for the airport.

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